SPECIAL BOAI;D OF_ADJUSTIU'NT NO. 605
PA'aTIES ) The Chesapeake and Ohio Railway Company
TO THE ) and
DISPUTE ) Brotherhood of :ailroad Signalmen
QUESTIONS
AT ISSU·.: (a) The Carrier violated current provisions
of the February 7, 1965 Mediation Agreement,
particularly Section 1 of Article I, and sec
tions 2 and 6 of Article IV, when claimant
Hunter Cyrus was furloughed close of vacation
day October 22, 1971. As a result;
(b) Carrier hereafter offer claimant employ
ment equivalent to his "base period" as con
templated in Section 1 of Article I, and Sec
tion 2 of Article IV; and,
(c) Carrier provide us with claimant's base
period of compensation earned and paid during
the last twelve months in which he performed
compensated service immediately preceding the
date of the Agreement - February 7, 1965; and,
(d) Carrier compensate claimant for all loss
of earnings which are less than his protected
monthly base rate due under Section 2 of Article
IV. In addition, Carrier make necessary payments
in order to make claimant whole for any and all
other loss, including payments toward his Rail
road Retirement, C&) Ho:3pital Association dues,
Travelers, and credit for loss of time toward
vacation and/or holidays;,and,
(e) Inasmuch as this is a continuing violation,
said claim is to be retroactively 60 days prior
to the filing of same, and is to further cover
the period of time unt--'. Carrier takes necessary
corrective action to co~:iply with the above men
tioned violations.
AWA^D 170.
Case No. SG-31-E
O P Itd IOIId
OF BOA.2D: The circumstances of this case are similar to those
in Award IJo.3-30; (SG-30-B) , except that a question
has been raised as to ;whether or not Claimant ever had qualified
as a protected employee.
Claimant was furloughed on May 1, 1964, and did
not work again until November 27, 1964. For a wee'.: he worked
as an e;:tra and on December 3 was awarded a temporary position.
According to Carrier, lie did not meet the test of Article I,
Section 1, which determines whether furloughed employees are
protected; he was not in "active service," since he did not
average 7 days of work per month of furlough in 1964.
The criteria determining whether or not an employee
is protected are set forth in Article I, Section 1. The employee
must have been in active service on October 1, 1964, must have
had two years or more of employment relationship, and must have
had at least 15 days of compensated service in 1964. Only the
"active service" standard is questioned in this case, as a
result of Claimant's furlough status on October 1, 1964. There
is no contention that Claimant failed to meet the other criteria.
However, the February 7 Agreement identifies protected employees not only as those in active service on October
1 but, alternatively, those "who after October 1, 1964 and prior
to the date of this Agreement have been returned to active
service."
The relevant provision in Article I, Section 1, is:
All employees, other than seasonal employees,
who were in active service as of October 1,
1964, or who after October 1, 1964, and prior
to the date of this Agreement have been
restored to active service, and who had two
years or more of employment relationship as
of October 1, 1964, and had fifteen or more
days of compensated service during 1964, will
be retained in service subject to compensation
as hereinafter provided... (Underlining added.)
Thus, if there have been a b.:o-years' employment
relationship and 15 days of compensated service in 1964, employees
are protected if they either were in active service on October 1
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AWARD
rro. 3-IA'
Case No. SG-31-D
or thereafter, but prior to February 7, 1965, "have been
restored to active service." A furloughed employee who was
restored to active service before February 7, 1965, meets the
alternative condition to "active service" on October 1, 1964,
without regard to days worked during the furlough.
Award 28 of this Committee
demonstrates that
an
employee furloughed on October 1, 1964, but recalled prior to
February 7, 1965, who has two years of employment relationship
and 15 days of compensated service in 1964, is a protected
employee. In that case the employee was furloughed September
28, 1964, and "did not return to active service until she was
notified on February 3, 1965." The Committee held that having
been "restored to active service" prior to February 7, she was
a protected employee.
The seven-day test is applicable to employees who
were on furlough on or before October 1, 1964, and were not
restored to active service "prior to the date of this Agreement." Since Claimant held an assignment beginning December 3,
1964, he satisfied the contractual conditions without regard
to the seven-day test. Otherwise, there would have been no
need to distinguish between all furloughed employees and those
restored to active service after October 1, 1.964, but before
February 7, 1965. The latter
qualification would
be superfluous if the seven-day test applied to anyone on furlough on
October 1, whether restored to active service by February 7
or not.
AWARD
Claim sustained, except that the request
stated in Paragraph (b) for "employment"
is denied, and the claim in Paragraph (d)
for fringe benefits is dismissed without
prejudice.
Milton Frie man
Neutral ,Member
Dated: Washington, D. C.
June
S`,
1973
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